Date: December 27, 1994
Case No. 94-CAA-0004
In the Matter of
RICHARD HOFFMAN
Complainant
v.
W. MAX BOSSERT
Respondent
Appearances:
Eugene Mattioni, Esq.,
Scott Schwarz, Esq.,
For the Complainant
Thomas Arthur James, Jr., Esq.,
For the Respondent
Before: Frank D. Marden
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under Section 7622(a) of the Clean
Air Act and Section 9610 of the Comprehensive Environmental
Response, Compensation and Liability Act. 42 U.S.C.
§7622(a) (1977); 42 U.S.C. §9610 (1980).
The Employee Protection Provision of the Clean Air Act
prohibits an employer from discharging or otherwise
discriminating against any employee because the employee engages
in communications or activities protected under the Clean Air
Act.[1]
The Employee Protection Provision of CERCLA prohibits an
employer from firing or discrimination against any employee
because the employee has engaged in activities that are subject
to protection under CERCLA.[2]
[PAGE 2]
On September 8, 1993, a written claim was filed with the
United States Department of Labor on behalf of Richard Hoffman,
Claimant, against his employer, W. Max Bossert and Boss
Insulation and Roofing, Inc., Respondent, for unlawful discharge
and discrimination in violation of Section 7622 of the Clean Air
Act, and Section 9610 of the Comprehensive Environmental
Response, Compensation and Liability Act.[3] (ALJX 1).[4]
After investigating Claimant's complaint, the Department of
Labor Wage and Hour Division found on October 13, 1993 that
Claimant was a protected employee engaging in a protected
activity within the scope of the relevant federal laws and that
discrimination as defined and prohibited by these laws occurred
in this case. (ALJX 3). Respondent appealed these findings by
sending a telegram to the Chief Administrative Law Judge on
October 15, 1993. (ALJX 4). In addition, Respondent filed an
Answer on December 17, 1993. (ALJX 19). This claim came before
the Office of Administrative Law Judges, pursuant to Respondent's
appeal of the findings by the Department of Labor Wage and Hour
Division. (ALJX 3, 4).
A formal hearing was conducted before me on December 21-22,
1993 in Lewisburg, Pennsylvania. At the hearing, both parties
were represented by counsel, presented evidence, and examined
witnesses.[5] After the close of the hearing, the parties were
given the opportunity to take the depositions of Ronald Schwebel
and Michael Hughes and to submit written closing briefs. (TR 13-
15, 375).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. Factual Background
Claimant began work for Respondent as a roofer in April of
1993. (TR 169). He is 37 years old and has a high school
education. He resides in Milton, Pennsylvania. (TR 167).
W. Max Bossert (Bossert) is the president, owner, and sole
stockholder of Boss Insulation and Roofing, Inc. (Boss) (TR 287-
289) (CX 23). Boss is a roofing business involved in industrial
and commercial roofing and employs 18 - 20 employees when
business is good. (TR 287-289). The company does seasonal work,
and in between jobs, several employees are laid off or work only
partial weeks. (TR 289-290). When employees are hired, they
understand that they will only be working 1500 hours instead of
2280 hours per year. (TR 290). Bossert testified that Boss has
done work on asbestos roofs and asbestos has always been a
[PAGE 3]
problem with roofs but not all roofs have asbestos. (TR 291).
He testified that there is no way to tell an asbestos from a
fiber glass roof just by looking at it with the naked eye. (TR
291). Bossert testified that asbestos can only be discovered
through an electron microscope when the felts are examined by
professional labs. (TR 291-92). Roofers do not usually check
because they do not have the capabilities. (TR 292).
Bossert is not asbestos certified, but he is a member of the
National Roofers Association which holds seminars on asbestos.
(TR 291). Boss's employees worked on asbestos roofs in 1992 -
1993, which involved three prison jobs and the Navy shipyards.
(TR 292-294). As a result of these jobs, Boss is familiar with
Department of Environmental Resources and Labor and Industry's
procedures concerning asbestos removal. (TR 294).
In 1993, Boss was awarded a contract to re-roof the Danville
High School. (TR 294). E.I. Associates was the Danville School
District's architect for the re-roofing project and prepared the
specifications for the work to be performed. (TR 56, 64). The
architect's role is to define the specification for handling the
roof, removal of the roof, the new type of roof they want
installed, and then he drew the pictures and prints required.
The architect gave Boss the specification of the job, and there
was nothing in the specifications or statement by anyone involved
in the project that asbestos was present. (TR 294). Boss's job
was to remove the existing built up roof which was four-ply
asphalt roof and install a new rubber adhered roof. (TR 59, 295)
(CX 19). The job began in July of 1993. (TR 252).
In the spring of 1993, prior to bidding on the job, Bossert
visited the High School and observed the top of asphalt roof
felts. (CX 19, p. 23). Marlin Hummel (Hummel), the school
district's Director of Buildings and Grounds and Resident
Inspector, showed Bossert the building. (TR 58-59). Hummel
testified that he did not say anything about whether asbestos was
present in the school because he did not know. (TR 59). Bossert
and Rick Klees, one of Boss's employees, testified that Hummel
assured Klees that the school was asbestos free. (TR 252, 295).
However, Boss did not perform any tests to determine if the
existing roof felts contained asbestos. (CX 19).
Michael Hughes, President of Central Pennsylvania Abatement
Corp., also visited the Danville High School in 1993 to inspect
the roof and put together a bid proposal. (CX 53). Hughes was
certified as an asbestos inspector, contractor, and supervisor
for abatement. (CX 53). He examined the roof and concluded by
[PAGE 4]
its appearance that it contained asbestos. (CX 53). He reported
his conclusion by telephone to E.I. Associates, but based on the
response from E.I. Associates, he concluded that the
specifications would not be changed so as to require that the re-
roofing be handled as an asbestos project. (CX 53). He declined
to bid on the job because he could not bid on the job as an
asbestos project and be competitive with other bidders. (CX 53).
He estimated that the price would be about 10 to 15 percent
higher for asbestos removal. (CX 53).
Until August 12, 1993, the general procedure used by Boss's
employees in the re-roofing project at the Danville High School
was to cut the existing roof into cubes of approximately 30
inches square, pry up the pieces of cut roof with a dozer, load
them into a wheelbarrow, and dump them off the edge of the
building into a dumpster. (TR 129, 178-180) (CX 19). The
employees did not use a hose to wet the roofing material down as
it was being torn off of the roof. (TR 131). (TR 131, 190) (CX
19). The roof pieces became frayed as they were torn off and
dumped into the dumpster. (TR 179). Some pieces missed the
dumpster or were spilled off the sides. (TR 126, 190).
Partial asbestos labels first began appearing on Monday,
August 9, 1993, but they were not legible. (TR 180). On
Tuesday, August 10, 1993, additional labels were discovered.
Dave Lenig, an employee of Boss who was asbestos certified,
mentioned to his foreman, Steve Bechdel, that he thought that the
roof felts contained asbestos. (TR 95, 110, 120). Lenig showed
Bechdel a label from one of the roof felts, which contained the
word asbestos, but the label was torn and unreadable. (TR 95,
138). Bechdel acknowledged seeing labels around that date, but
said that they were cut and difficult to read so Bechdel took no
action. (TR 97-98, 110, 138). 120). Lenig became concerned and
called his former employer at lunch time to find another job.
(TR 95). Lenig's former employer also gave him the telephone
numbers of the agencies to contact for the prevailing wage and,
the asbestos. (TR 111).
On August 10th, Claimant testified that he discussed the
labels with the other employees, including Bechdel, Lenig, Chad
Smith, Mike Hufnagle, and Brian Osman. (TR 181). With the
exception of David Lenig, who has an asbestos certification, the
other employees simply ignored the labels. (TR 91, 181).
On August 11, 1993, it rained and there was no work. (TR
96, 98, 183). Claimant accompanied Lenig to a pay telephone at a
doughnut shop and provided Lenig with change so that Lenig could
call his former employer and asked him to notify the proper
[PAGE 5]
authorities. (TR 183). Lenig then called his former employer
and talked with his old foreman. He asked him to call the
agencies and provide notice so that the site could be checked for
asbestos. (TR 96, 98). Based on Lenig's telephone call, Lenig
and Claimant were both under the impression that Lenig's former
employer would notify the appropriate persons about the potential
asbestos problem. (TR 98-99, 114, 183). Lenig went back to
work for his former employer the next Tuesday. (TR 30, 103).
On August 12, 1993, no state inspectors were present at the
school when Claimant and Lenig arrived. The roof tear off
started as normal. (TR 98-99, 183-184). The employees present
on August 12, 1993 were: Steve Bechdel, Richard Hoffman, Mike
Hufnagle, Paul Mehallow, Chad Smith, Brian Osman, and Dave Lenig.
(TR 119, 148, 181) (CX 20) (RX 4). Bechdel was the foreman. (TR
119, 184). Lenig was the only worker on the roof on that date
with asbestos certification. (CX 19) (TR 91, 186-187).
Claimant's job was to cut and tear off the roof felts. As the
day progressed, the workers found more labels which were intact
and indicated that there was asbestos on the roof. (TR 99, 184).
Claimant testified that he gave the labels to Bechdel and asked
Bechdel to stop the job. (TR 184). He told Bechdel that
somebody had to notify the school, and volunteered to do so. (TR
185). Lenig was present and confirmed that Claimant volunteered
to go to the school office. (TR 99-100). Bechdel instructed
Claimant to get a school supervisor so Bechdel could notify the
school. (TR 99, 121, 185). Bechdel and Lenig confirmed that
Claimant was acting with Bechdel's approval. (TR 99, 121).
Claimant then went to the school office, spoke to a
secretary, Laura McGonnell, and asked to speak with the
superintendent of schools. (TR 61, 187 and 215). The secretary
told Claimant that the superintendent was unavailable. (TR 61,
187, 230-231). Claimant mentioned that there was a problem on
the roof and was insistent on speaking to the superintendent.
(TR 187-188). Hummel overheard the conversation and told
Claimant that he was in charge of the roof and would handle the
problem. (TR 61, 188, 231-233). Claimant refused to speak to
Hummel and allegedly was rude, rowdy, and obnoxious to both the
secretary and to Hummel. (TR 215 and 232). Hummel testified
that Claimant was rough which upset the secretary. (TR 62).
When Claimant left the office, Hummel followed Claimant to the
roof, where they met Bechdel. (TR 61, 121, 188-189, 233).
Bechdel told Hummel that they found some labels that said
asbestos and that a possible problem with asbestos might exist.
(TR 61-63, 121, 189).
Next, Bechdel contacted his office and left a message for
[PAGE 6]
Bossert to come to the school. (TR 122). Hummel contacted the
school district's architect, E.I. Associates, and the school
district's asbestos consultant, Ron Schwebel, who is asbestos
certified as a building inspector, management planner, and design
consultant. (TR 61) (CX 52). Schwebel arrived at the Danville
High School at about 1:30 pm on August 12, 1993. (TR 65) (CX
52). He took five samples of the roofing material, including one
sample of the roofing material from a truck located about thirty
feet from the school building, and he took these samples to an
EPA certified laboratory. (TR 67) (CX 52).
Bossert was in Harrisburg, Pennsylvania from August 8, 1993
until the morning of August 12, 1993. (TR 297). When he
returned to Lewisburg on August 12, he called his office and
spoke with Kristine Beaver, his office manager. (TR 298) (CX
20). Beaver told Bossert about the reports of asbestos at
Danville High School. (TR 298). Beaver called the Department of
Environmental Resources and the Labor and Industry to report the
asbestos problem. (TR 260-261, 298-299). James Archenbault,
with DER, told Beaver to submit a written application. (TR 261).
Beaver testified that she filled out a DER form on Thursday
(August 12, 1993) but needed more information from Bossert and
needed his signature, which he signed early Friday morning. (TR
263). She then sent the form to DER. She also filled out an
asbestos notification form for Labor and Industry on Thursday.
(TR 263-264). Bossert signed the form on Friday, and she mailed
it that day. (TR 264, 308).
Bossert arrived at the school a little after Schwebel on
Thursday, August 12, and met with Claimant, Bechdel, Hummel, and
Schwebel. (TR 298-299). He learned at that time Claimant and
Bechdel had discussed the asbestos labels earlier that morning,
and that Claimant had talked to the school secretary and Hummel.
(TR 298-299, 309).
While on the roof at Danville High School, Bossert spoke
with Claimant about Claimant's conversation with the school
district officials. (TR 190, 301-302). Claimant, Bechdel, and
Bossert all testified that this conversation took place. (TR
122-123, 190, 298-299). Claimant testified that Bossert came
over and told him that he did not know how to communicate, and
that Claimant should not have gone to the school district, but
rather should have come to him. (TR 190, 295). Bechdel
similarly testified that Bossert criticized Claimant for acting
improperly and not contacting Bossert first. (TR 122-123).
However, Bechdel explained that what Bossert meant by his
statement was that the employees acted properly by stopping the
[PAGE 7]
job, shutting things down, and notifying people, but Bossert
would have liked to have been contacted first. (TR 139-140).
Bossert, in his deposition, acknowledged admonishing Hoffman for
the manner in which he spoke to the school district. (CX 19).
Bossert testified that he had no concern or objection that the
school was notified about the asbestos problem because that was
the standard procedure when asbestos is found, but he was
concerned about the way Claimant approached the school. (TR 309-
310). Bossert testified that he was aware of other instances
that Claimant came across as rude, rowdy, and rough when talking
to people. (TR 311-312).
Before returning to his office, Bossert instructed his
employees to return to the shop for a meeting at the end of the
day. (TR 100) (CX 19). In addition, Bossert again admonished
Claimant and said Claimant could not go back to work at the
Danville High School because he had upset the school officials
and should take the day off. (TR 191-192). Bechdel recalled
Bossert saying that the employees should have come to Bossert
first, and that Bechdel should have gotten off the roof and told
the school officials. (TR 123). Lenig recalled Bossert saying
that the school district did not want Claimant back on Friday and
that he should be given a day off. (TR 101). Claimant testified
that Bossert initially told him to take the day off, but Claimant
stated that he wanted to work so Bossert told him he would find
him another job. (TR 192). Lenig also recalled Bossert telling
Claimant to report to work on Friday and he would find another
job for him. (TR 101). Bossert told Lenig to report to work on
Friday and he would be required to wear asbestos gear to remove
the roof decking. (TR 101).
On Thursday night, August 12, 1993, Claimant called Pat
Kelly, a Field Investigator with the Pennsylvania Department of
Labor and Industry ("L&I"). (TR 193). Claimant provided Mr.
Kelly with information of the events that had taken place earlier
that day at the Danville High School job site. (TR 193). Kelly
stated that he would visit the site. Claimant asked Kelly to
bring along someone from the Pennsylvania Department of
Environmental Resources ("DER") when he visited the school. (TR
193).
The following morning on August 13, 1993, Claimant reported
to work at about 7:00 am and was told by Bossert that there was
no work for him. (TR 194, 315) (CX 19). Claimant recalled
Bossert saying there was no work for him and advising him to go
on unemployment. (TR 194). According to Bossert's testimony, he
told Claimant there was no work for him that day because only
[PAGE 8]
qualified asbestos and rubber workers could go back to Danville
High School job that day. (TR 312-315). Employees with
certified asbestos removal were involved in the tear off process
that Claimant normally worked, and the other employees were
certified applicators that laid the rubber on the roof. (TR
313). Claimant was not certified in asbestos removal or, was he
a certified applicator. (TR 314). Training for certified
applicators is normally done in Jan., Feb., and March, and
Claimant started working in early summer and had not had a chance
to go to school. (TR 314, 332-341).
Further, Claimant also had the least seniority and
experience of Boss's employees. (TR 108, 265, 331-332). Bossert
testified that Claimant was not assigned to the job at the
Brockway school because that job was ongoing and was about to
close, and there were already 5 or 6 men on the job so he was not
needed there. (TR 345-346).
After returning home, Claimant called Gus Mucha of OSHA.
(TR 194). Claimant told Mr. Mucha that he suspected that he had
been fired from his job, and described the events that had taken
place on August 12 and 13, 1993. (TR 194). Mucha advised
Claimant to return to work on Monday and said that he would
investigate the matter. (TR 194).
At about 9:00 am on August 13, 1993, Schwebel received the
analytical results from the laboratory, which showed asbestos
levels ranging from 8 to 30 percent in the roof material sampled.
(TR 302) (CX 39, 52). Because EPA considers roofing material
with over one percent asbestos as "asbestos containing" material,
it was clear to Schwebel by August 13, 1993 that the roofing
material was "asbestos containing material" for purposes of the
EPA regulations. (CX 52).
The highest level of asbestos from the samples collected and
analyzed, which was 30%, was reported in the sample of roofing
material collected from the truck. (CX 52, 39). After receiving
the sample results, Schwebel called Bossert and faxed him the
test results. (CX 52, 19).
During his conversation with Bossert, which took place
before noon on August 13, 1993, Schwebel instructed Bossert that
the employees on the roof should be certified and provided with
protective clothing and respirators. (CX 52). On Friday, an air
monitoring was to be done on an representative area of the roof.
(TR 302). Schwebel stated that if the air conditioning
monitoring results showed levels of asbestos in the air below the
[PAGE 9]
regulatory action level established by OSHA of 0.1 fiber per
cubic centimeter, then it would not be necessary for the
employees to wear protective clothing and respirators, although
asbestos certification would still be necessary. (CX 52).
Lenig testified that he worked on Friday with Ken Smith and
the rest of the crew except Claimant. (TR 101-102). Lenig and
Ken Smith, both wore asbestos gear because they were the only
ones who were certified in asbestos and allowed to remove the
decking from the roof. (TR 102, 302-303). They would tear off
the roof in different areas and conduct air monitoring samples
which were sent to a lab for testing. (TR 75, 302). The other
certified employees were performing the detailing, which included
applying the rubber on the roof, on the other end of the roof.
(TR 102, 126).
Patrick Kelly of L&I visited the Danville High School on
August 13, 1993. (TR 71) (CX 52). Kelly stated that he was
there to follow up on 13 complaints that he had received and to
speak with Bossert and Hummel to determine if any of Boss's
employees were certified in asbestos. (TR 71-72). Kelly also
spoke with Schwebel about the asbestos certifications of Boss's
employees. (CX 52). Schwebel reported this conversation to
Bossert on August 13, 1993. (CX 52, 50).
Schwebel spoke with Mr. Lawrence of L&I on August 14th or
15th. (CX 52). Lawrence confirmed to Schwebel that Boss's
employees working on roof removal had to be certified as asbestos
workers, and Boss's supervisor on the roof would have to be
certified as an asbestos supervisor. (CX 52). Schwebel reported
this conversation to Bossert verbally and in a subsequent letter
dated August 20, 1993. (CX 52, 50).
On Sunday, August 15, 1993, Claimant again called Pat Kelly
of L&I, and provided Kelly with additional information of the
events that had taken place at the Danville High School. (TR
197). Kelly told Claimant that he had gone to the school and
done some monitoring tests and tear offs. (TR 197).
On Monday, August 16, 1993, Claimant reported to work at
about 7:00 am. (TR 197, 315). Bossert again told Claimant that
there was no work because he did not have a place to put him. He
advised Claimant to go to the unemployment office. (TR 198, 315-
316). Next, Claimant followed Bossert and asked several times
whether Bossert was firing him. (TR 197-198, 315-316). Claimant
testified that Bossert then nodded his head. (TR 194, 198).
Bossert claims that he replied, "no, you are laid off." (TR 315-
[PAGE 10]
316). After returning home, Claimant telephoned Gus Mucha of
OSHA a second time and reported what happened. (TR 198). Gus
Mucha told Claimant that he would investigate the matter. (TR
198).
Bossert received a telephone call from Gus Mucha around
August 16th as a result of Claimant's complaints to Mucha. (TR
308-309, 345). Gus Mucha's notes show that he contacted Bossert,
but that Bossert could not offer any additional information,
except to repeat "Hoffman should have spoken to me first, he
shouldn't have gone to the District office." (CX 1). Bossert
testified that he made this statement. (TR 310, 352). However,
he explained that what he meant by this statement was the manner
in which Claimant handled the situation. The statement had
nothing to do with asbestos. (TR 352-353). Mucha's notes go on
to state "I then suggested to Bossert that he assign Claimant to
another 'prevailing wage rate' job in Williamsport to resolve
this matter. Bossert declined the suggestion." (CX 1).
However, Bossert testified that he did not have a prevailing wage
job in Williamsport. (TR 352).
Air sample results, collected on the roof during a tear off
on Friday, the 13th, were also received by Boss on Monday, August
16. (TR 303). These results showed ambient air asbestos levels
below the action levels which trigger requirements for masks and
protective clothing or moon suits. (TR 303). Based on these
results, DER directed Boss to wet down the roofing, but to
otherwise handle it as normal. (TR 303). The job could
continue with the appropriate people. (TR 303, 305, 341). The
agencies wanted all the workers to be certified; although the
employees were not required to wear suits and respirators. (TR
341-342). During that week, Boss was trying to get the job going
again, but the company did not have enough qualified employees to
do asbestos removal. (TR 317).
The project was then halted for about a month. (TR 266).
Work was temporarily halted because Boss did not have enough
employees who had certifications from asbestos school. (TR 304-
305) (CX 19). About two weeks after August 12, Bechdel, Brian
Osman, Chad Smith, and Mike Hufnagle were sent to asbestos school
at Boss's expense of about $800 per employee. (TR 39, 124, 148)
(CX 19). Boss did not offer to send Claimant to asbestos school.
(TR 201) (CX 19, p. 60).
On August 18, 1993, James Orr, an air quality inspector at
DER, conducted an asbestos complaint investigation of the
Danville High School. (CX 9) (TR 76). He met with Hummel and
[PAGE 11]
discussed handling procedures and disposal methods of the
asbestos roofing material. (TR 75-76). Hummel testified that
Orr was interested in the removal of the material from the roof
and whether it was being handled properly, and Orr did not give
any indication that it was not being handled properly. (TR 75-
76). Hummel stated that Orr did not require any changes in the
project. (TR 77). On September 9, 1993, when the roofing work
resumed, Orr conducted a reinvestigation. (CX 9). His
investigation concerned possible violations of the asbestos
regulations due to complaints. (CX 9, 24, 28).
On August 18, 1993, Claimant also provided information about
the asbestos problem at the Danville High School to the Milton
Standard, a local newspaper, by giving a deposition at the
newspaper's office. (TR 220-221, 223).
As a result of the newspaper story, a lot of hysteria was
created. (TR 305-306). Every time Boss would go back on the job
on a weekday basis, with Hummel's approval, there would be
complaints from inside the building concerning airborne
particles. This caused the School District to stop the roofing
job. (TR 87). The district stated that the job was stopped
until the district could determine what was going on, even though
the test results indicated that the workers could continue
working on the roof without causing any danger to anyone. (TR
86-87, 305-307). Due to the hysteria in the Danville area at the
time, and the way the teacher's groups were, the school district
decided to wait until the following summer to finish the job.
(TR 325-326).
I also note that on August 25, 1993, Bossert wrote a letter
to Gus Mocha of OSHA, in which he explained his discussions with
the Claimant as follows:
After hearing all of the details from the school
district and from other employees, I told Mr. Hoffman
not to go back to work on Friday, August 13 at the
school. I told him I had nothing else for him to do at
any other job for that Friday. Also, we then discussed
whether he should come to work or not on Monday. I
told him if I had another job for him on Monday he
could work on that job. However, Mr. Hoffman then
called the newspaper, etc. and created quite a lot of
hysteria as a result of the asbestos. Mr. Hoffman did
not report for work on Monday, the 16th, and has not
been back since the 13th.
(CX 3).
[PAGE 12]
At the hearing, Bossert recalled saying in August: "How
could I have him (referring to Hoffman) back. He destroyed that
job." (TR 325). Bossert explained that he was referring to
Claimant's communications to the newspaper about the asbestos
problem. He explained that he was referring to the hysteria that
was caused as a result of his reporting the incident to the
newspaper. The job would probably have continued on because Boss
had the capabilities to finish after everyone was trained. (TR
325). (TR 325-326). In referring to Claimant's communications
with the newspaper, Bossert testified, "... had he not gone to
the newspaper, we probably would have been back on the job and
continuing on." (TR 325).
As a result of the Danville School job closing, Boss laid
off several employees. (TR 326). The Danville School job was a
large project which involved about half of the work force of this
company, and when the job closed, Boss reduced its work force.
Beaver and Bossert both testified that Boss's business decreased
after the Danville job. (TR 269, 307). Tom Alexander was laid
off shortly after the 12th, and Ken Smith was laid off a couple
of weeks after the 12th. Chad Bossert, Steve Venios, and Dave
Lenig no longer worked for Boss after the week of August 21. (TR
267-68). None of these employees were replaced by new employees.
(TR 134).
Some of Boss's employees went on to other jobs that were not
wage jobs or were private jobs that did not pay as much. (TR
326). Bechdel testified at the hearing that he worked all
through September, October, and November. (TR 127). He also
testified that Chad Smith, Mike Hufnagle, Brian Osman, and Paul
Mehallow all worked regularly for Boss through the months of
September and October. (TR 132).
By September 8, 1993, Claimant filed an additional written
complaint with the DOL pursuant to the employee protection
provisions of the Clean Air Act and CERCLA. (ALJX 1). This
complaint was investigated by DOL Wage and Hour Division,
resulting in the findings on October 13, 1993 that Claimant was a
protected employee engaging in a protected activity within the
scope of the relevant federal laws and that discrimination as
defined and prohibited by these laws occurred in this case.
(ALJX 3) (TR 199). Boss received this letter on October 15,
1993. (TR 283). That same day, he filed an appeal by sending a
telegram to the Chief Administrative Law Judge. (TR 283) (ALJX
4).
On September 9, 1993, the workers were called back and work
[PAGE 13]
resumed on the roof at the Danville High School for a few
weekends, but only on weekends. (TR 32). In addition to having
asbestos certified employees, Boss was required to handle and
dispose of the roofing material as asbestos. This meant that he
had to notify the landfill about the dumping procedures and
perform some air monitoring, as well as line the dumpster used to
collect and store the asbestos prior to shipping the material to
the landfill. (CX 19 p. 65-66). When work resumed on the
school's roof, OSHA conducted an inspection in response to
Claimant's prior oral complaints of August 13th and 16th, 1993.
(CX 4). OSHA cited Boss for failing to investigate the Danville
High School roof thoroughly enough before starting the re-roofing
project. (CX 4) (TR 327).
The work at Danville High School continued on Saturdays for
about three to six weeks until a certain area was reached. (TR
81, 305-306) (CX 19 p. 63-64). Once the expansion joint was
reached, Boss's employees tied off the area for the winter, and
the re-roofing work stopped until next summer. (TR 81, 305-306)
(CX 19 p. 63-64). At the time of the hearing, the re-roofing job
was 46 percent complete. (TR 325).
As a result of the Danville job closing, Boss's work force
was reduced due to the lack of work. (TR 152, 269, 307, 326).
Several workers were either laid off or no longer worked for the
company. (TR 153-155, 265-269, 326). Beaver, Bechdel, and
Bossert all testified that Claimant had the lowest seniority, and
that he was one of the employees laid off due to lack of work.
(TR 133-134, 265, 326). Bechdel testified that Claimant was not
needed after August 12th so he was laid off. (TR 127). The job
did not require as many people because the workers were only
doing detailing and finishing up. (TR 136).
I further note that on September 15, 1993, Claimant had
bicep surgery due to an injury he had received in June while
working for Boss. (TR 199-200, 271, 329). Although he was
injured in June, Claimant worked through August 12th and was
capable of doing his job. (TR 200, 329). Claimant received
compensation under worker's compensation, beginning September 15,
1993. (RX 6) (TR 208, 271-272, 329). On October 8, Beaver
contacted Dr. Hahn, Claimant's doctor, to determine if Claimant
could return to work doing modified activities. (TR 272) (RX 9).
Dr. Hahn determined that Hoffman could return to work on light
duty and sent a letter on October 19 to Boss. Beaver sent a
letter to Hoffman on October 18th about coming back to work on
October 21st. (TR 199, 284) (CX 12). Hoffman returned to work
on October 21, 1993. (TR 273-274).
[PAGE 14]
Claimant reported to work on October 21, 1993. (TR 155).
He was assigned to work on the light duty program and remained on
light duty work for about one month. (TR 200-201) (CX 20 p. 14-
15) (CX 13). He was paid $204 per week while on light duty work
and did not receive any worker's compensation during this period.
(TR 208).
By memorandum dated Novemebr 27, 1993 and signed by Bossert,
Claimant was notified that he was "laid off as of the above date
due to lack of work." (TR 201) (CX 23). He has not worked since
November 27, 1993. (TR 201).
II. Complainant's Prayer for Relief
Claimant seeks a finding that he was unlawfully
discriminated against in violation of CAA and CERCLA. He also
requests the entry of an order directing Boss to do the
following:
(1) reinstate Claimant to his prior employment status as it
existed prior to August 12, with no loss of job seniority or
other privileges;[6]
(2) offer Claimant the same opportunity for training in
asbestos and rubber roofing as was offered to the other
employees;[7]
(3) pay Claimant back pay in the amount of $2097[8] ;
(4) pay costs and expenses, including attorneys fees and
witness fees, incurred in connection with bringing this
claim in the amount of $31,259.12.[9]
III. The Law
Claimant, in a whistleblower case, initially has the burden
of proving a primafacie case by a preponderance of
the evidence. To prove a primafacie case, an
employee must establish each of the following elements:
(a) That the employee engaged in protected activity;
(b) That the employer knew that the employee engaged in
protected activity;
(c) That the employer took some adverse action against the
[PAGE 15]
employee; and
(d) The employee must present evidence sufficient to at
least raise an inference that the protected activity was the
likely reason for the adverse action.
Sellers v. Tennessee Valley Authority, 90-ERA-14 (Sec'y
April 18, 1991) Decisions of the OALJ and OAA, Vol. 5, No. 2,
March-April 1991, p. 165-166. See alsoThompson v.
Tennessee Valley Authority, 89-ERA-14 (Sec'y July 19, 1993)
Decisions of the OALJ and OAA, Vol. 7, No. 4, July-Aug. 1993, p.
316-319. SeegenerallyTexas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 252-256 (1981).
Once Claimant has established his primafacie
case, Respondents have the burden of presenting evidence that the
alleged adverse action was motivated by legitimate,
nondiscriminatory reasons. Id.; See alsoLockert v. United States Dept. of Labor, 867 F.2d 513, 519
& n.2 (9th Cir. 1990). If Respondent articulates a legitimate,
nondiscriminatory reason for his action, Claimant must establish
that Respondent's proffered reason was not its true reason, but
rather, a pretext. Id.
The Respondent need not persuade the court that it was
actually motivated by the proffered reasons, but it is sufficient
if the Respondent's evidence raises a genuine issue of fact as to
whether it discriminated against the Claimant. To accomplish
this, the Respondent must clearly set forth, through the
introduction of evidence, the reasons for the Claimant's
rejection. Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 252-256 (1981).
IV. DISCUSSIONA. Protected Activity
To establish the first element of Claimant's primafacie case, he must prove that he has engaged in protected
activity. The primary purpose of the employee protection
provisions are to ensure that violations of the act are reported.
Marshall v. Intermountain Electric Co., 614 F.2d 260, 262
(10th Cir. 1980). Reporting violations of environmental statues
internally to one's employer is protected activity under the
whistleblower provisions. Guttman v. Passaic Valley Sewerage
Comm'rs, 85-WPC-2 (Sec'y Mar. 13, 1992). An informal safety
complaint to a
[PAGE 16]
supervisor is sufficient to establish protected activity.
Samadurov v. General Physics Corp., 89-ERA-20 (Sec'y Nov.
16, 1993). Further, a claimant's questioning of his supervisor
about an issue related to safety constituted protected activity.
Crosier v. Portland General Elec. Co., 91-ERA-2 (Sec'y
Jan. 5, 1994); Nichols v. Bechtel Constr., Inc., 87-ERA-44
(Sec'y Oct. 26, 1992).
In Passaic Valley Sewerage Comm'rs v. United States Dept.
of Labor, 992 F.2d 474 (3d Cir. 1993), the Claimant was
employed by the Respondent, a water treatment facility, as the
head of a lab that analyzed water samples pursuant to an ad
valorem user charge system in which the users of the facility
took their own water samples. Over a period of years, the
Claimant reported extensively to PVSC officials that the user
charge system violated the FWCPA. The claimant was subsequently
terminated from his employment at PVSC. The Third Circuit held
that the "statute's purpose and legislative history allow
extension of the term 'proceeding' to intracorporate complaints."
Accordingly, the Third Circuit affirmed the findings of the
Secretary that the Claimant had engaged in a protected activity.
In this case, during the tear off process of the roof at the
Danville High School, partial labels were found on Tuesday,
August 10, which raised suspicions about the presence of
asbestos; however, the labels were torn and unreadable so it was
not clear whether asbestos was present in the roof materials.
(TR 118-120, 180-182). There were discussions between the
workers, which included Steve Bechdel, Dave Lenig, Chad Smith,
Mike Hufnagle, Brian Osman, and Richard Hoffman, about the
labels. (TR 181).
Steve Bechdel, the foreman for Boss on the Danville High
School job, testified that Dave Lenig found something on the
10th. (TR 120). However, Bechdel could not recall specifically
whether Lenig told him about the possibility of asbestos or
whether it was another employee. He stated that he believed that
Lenig came and showed him a piece of paper with the word
"asbestos" cut through it. Dave Lenig testified that he told
Bechdel about the possibility of asbestos on August 10th. (TR
95, 110).
There was no work on August 11, 1993 and on Thursday, August
12, Claimant and the other workers again found labels on the
roof. (TR 154). Claimant told Bechdel that the school should be
notified due to the safety of the children and the workers, and
he volunteered to go to the school office. (TR 184-185). With
[PAGE 17]
Bechdel's permission, Claimant went to the school office to get a
school supervisor. (TR 121). Lenig affirmed that one of the
workers showed the labels to Bechdel and that Claimant went to
the school office. (TR 99-100).
Based on the above, I find that Claimant's communications
with his supervisor, Bechdel, about the asbestos and the
possibility of its danger to the children in the area as well as
his insistence on notifying the school's officials constituted an
informal safety complaint to a supervisor and is a protected
activity.
Further, Claimant argues that communicating with government
agencies about the asbestos problem is a protected activity.
Communicating with governmental officials about potential health
hazard are protected communications. Marshall v. Commonwealth
Aquarium, 611 F.2d 1 (1st Cir. 1979); Donovan v. George
Lai Contracting, Ltd., 629 F. Supp. 121, 123 (W.D. Mo. 1985).
In this case, Claimant called Pat Kelly, who is a Field
Investigator with the Pennsylvania Dept. of Labor and Industry,
on Thursday evening, August 12th and on August 15th. He
explained the events that occurred on August 12th at the Danville
High School. (TR 193). Claimant told Kelly to bring an official
from DER when he inspected the school. (TR 193, 197). He also
contacted Gus Mucha, who is with OSHA, on August 13th and 16th
and explained the finding of asbestos and the events that
occurred. (TR 194, 198).
Accordingly, I find that Claimant's telephone calls to these
government agencies are also protected activity because they were
direct contacts with state and federal officials, who were
responsible for investigating asbestos violations at the school.
I find Claimant engaged in protected activity when he contacted
the federal and state government agencies.
B. Employer's knowledge of the protected activity
To establish the second element of Claimant's prima
facie case, he must prove that his employer knew that he had
engaged in a protected activity. Claimant told his foreman,
Bechdel, about the asbestos and the need to notify the school
district. Also, several employees were present when Claimant
told the foreman about the need to contact the school's
officials. (TR 185-186).
Accordingly, I find that Respondent was aware that the
Claimant engaged in protected activity because the foreman was
aware of Claimant's safety complaint. Also, Bossert, the owner
[PAGE 18]
of the company, testified that he knew that Claimant notified
Bechdel about the labels and subsequently went to the school
office to get a school supervisor. (TR 309). Hence, I find that
Boss knew that Claimant engaged in protected activity.
Furthermore, Bossert testified that he was aware that
Claimant had contacted authorities because Gus Mucha, who is with
OSHA, contacted him on Saturday or Monday about a complaint that
had been filed by Claimant regarding the Danville school job.
(TR 309). Also, Bossert testified that he was aware on August
16th that Claimant had contacted some agencies due to Claimant's
statements that he had contacted some people. (TR 308). In
addition, Bossert claimed that he had also heard this through
other employees. (TR 308-309). However, Bossert noted that
these were the same agencies, L&I and DER that Beaver, who is his
business manager, had contacted by telephone and written
communications on Thursday afternoon and Friday about the
asbestos problem independent of any knowledge that Claimant had
contacted these agencies. (TR 298). Hence, I find that Boss
knew that Claimant engaged in protected activity by contacting
government agencies.
C. Adverse Action
To establish the third element of Claimant's prima
facie case, he must prove that Respondent took some adverse
action against him. In this case, Claimant alleges that the
adverse action against him was the unlawful discharge and
discrimination in the form of being laid off or fired from his
job as well as the loss of opportunity to attend asbestos school.
Bossert told Claimant on Friday, when he arrived for work, that
he did not have a job for him and that he should go to the
unemployment office. (TR 194, 313-315). Bossert explained that
Claimant was neither certified in asbestos nor a certified
applicator in laying rubber. (TR 313-315). Also, on Monday,
when Claimant reported for work at the office, Bossert reiterated
that he did not have a job for him based on the same reasons as
Friday. (TR 198, 315-316). Bossert told Claimant that he was
laid off and that the should go to the unemployment office. (TR
315-316). On the other hand, Claimant testified that he was
fired, but he admits that Bossert did tell him to go to the
unemployment office. (TR 194, 198, 209, 212).
I note that the federal laws at issue do not distinguish
between being fired or laid off in terms of discriminating
against the employee. Accordingly, I find that Claimant has
established that Respondent took an adverse action against him
[PAGE 19]
because he was laid off or alternatively fired.
D. Causal Nexus between the Adverse Action and the
Protected Activity
To establish the fourth element of Claimant's prima
facie case, Claimant must at least raise an inference that
the protected activity was the likely reason for the adverse
action.
Claimant alleges that because he engaged in protected
activities, such as contacting school officials and government
agencies, Boss refused him the opportunity to work and did not
offer him the opportunity to attend asbestos school. Claimant
points out several inconsistencies in Respondent's case to prove
his burden that the adverse action against him resulted from his
protected activities.
First, Respondent's attorney called three witnesses, Stacy
Keefer and George Ferlazzo from a bank, and Laura McGonnell, the
school secretary, in an attempt to elicit testimony about
Claimant's attitude as being rowdy, rude, and obnoxious. (TR
230-250). Claimant argues that Boss expended a great deal of
time and effort to establish Claimant's offensive attitude, but
then denied that Claimant's attitude had anything to do with the
decision not to offer him work after August 12. (TR 326-327,
334-336). Claimant alleges that this type of testimony is
inherently inconsistent and confusing at best when weighed with
Boss's claim that the only reason Claimant was not provided with
work after August 12 was because of lack of work. I agree.
During the hearing, I questioned Respondent's attorney about
the relevance of the evidence regarding Claimant's attitude. (TR
332-339). Bossert consistently testified that Claimant was laid
off due to lack of work. (TR 314, 326, 336). Bossert instructed
Claimant to apply for unemployment compensation. (TR 315-316).
Claimant admitted that Bossert told him to apply for
unemployment. (TR 198). Respondent's attorney stated that he
was in error regarding this issue of Claimant's attitude, and
that this was a "Freuding" issue. (TR 334-335). He stated that
Claimant's attitude had nothing to do with his being laid off.
Accordingly, I find that Claimant was laid off due to his
low seniority and lack of work. The evidence concerning
Claimant's attitude is a red herring. I do not find that
Claimant's attitude has any relevance to the protected activity
of notifying the school or his being laid off. Hence, I find
that this evidence is inappropriate and irrelevant in this case.
[PAGE 20]
Second, Claimant alleges that Bossert's repeated statements
that the school district was upset with Claimant are inconsistent
with Bossert's claimed reason for not sending Claimant back to
Danville High School on August 13, 1993. Claimant and Lenig
testified that Bossert told Claimant at the office meeting on
Thursday evening that he could not work on Friday because the
school district was upset with him and did not want him back on
the job. (TR 101, 190-192). Also, Claimant cited a statement of
one of Boss's employees taken by the DOL investigator on
September 23, 1993, in which the employee stated that on August
13, Bossert told Hoffman that he could not use him on the
Danville school job anymore because the school was not happy with
his actions in the school office on August 12. (CX 5). Finally,
Claimant argues that Hummel testified that he never told Bossert
not to send Claimant back to the school. (TR 78-79).
However, I note that Hummel did state that he sent a letter
to Respondent explaining the events of August 12 and Claimant's
actions. It is understood that different events and actions can
be perceived differently by different people. I find that this
letter explaining the actions of Claimant on Thursday could have
been interpreted by Bossert to mean that the school district was
upset with Claimant. Further, I find that the statement on
August 23, 1993 by one of Boss's employees is unpersuasive
because it appears leading where the first part of the statement
is a narrative and the later part indicates that the employee was
prompted.
Further, I find that Bossert was not upset that the school
was notified because he stated that this is the normal procedure
when asbestos is found; however, he was upset with Claimant about
the manner in which Claimant tried to notify the school. This is
the sole reason Bossert kept telling Claimant that he should not
have gone to the school office and that he did not know how to
communicate. The question is whether being upset constituted a
likely reason for the adverse action.
Bossert testified that Claimant was laid off due to lack of
work. (TR 326). Claimant did not work on Friday because he was
not qualified. (TR 340-341). He was not certified in asbestos
or in the application of rubber. (TR 336, 340). Bossert
testified that he had no work for Claimant on Friday because
Schwebel requested that only asbestos certified workers be
allowed to do tear off on Friday which is what Claimant was doing
on the school roof. Also, Claimant could not do the rubber work
that was being done on the other part of the roof because
Claimant was not certified. The manufacturers require that a
[PAGE 21]
worker be certified in application of rubber for the job to be
guaranteed. (TR 336-337). Bossert testified that Claimant was
an unskilled roofer and did not know the detail work so he was
used as a laborer in doing tear off work. (TR 331-332). There
were two people doing tear off who were asbestos certified.
There were three people doing the detail work, who were certified
in application of rubber; however, Bossert was not clear about
the qualifications of the one other worker, who worked on Friday,
Chad Smith. (TR 343). However, Chad Smith and all the rest of
the workers on the Danville roofing job, had more seniority than
Claimant, which was the reason why Claimant was the first
employee on this job to be laid off. (TR 265). There were six
Boss employees on the roof on Friday the 13th, who had been
working on the roof during the week. Six employees constitutes a
normal crew on a job. (TR 336-337).
Based on the foregoing, I find that Claimant has not raised
an inference that the adverse action (lay off) was a result of
his protected activity. I find that Boss did not lay off
Claimant for contacting the school officials or any of the
regulatory agencies. Claimant was laid off for lack of work;
i.e., the job was shut down. Further, Bossert testified that
Claimant did not work on the Danville school on Friday because he
was not qualified. Claimant was not certified in asbestos or
applying rubber on the roof, and he had the lowest seniority of
all the workers. Therefore, I find that Claimant did not work on
Friday because of his seniority and qualification limitations.
Third, Claimant alleges that Bossert's repeated complaints
that Claimant should have come to him first are inconsistent with
Bossert's stated reason for not having Claimant work at the
Danville High School job on Friday or the following week. I note
that Claimant and Steve Bechdel both testified that Bossert told
Claimant that he handled the situation incorrectly, and that
Claimant should have gone to Bossert first. (TR 122-123, 190).
Further, Gus Mucha's notes from his conversations with Bossert on
August 16, 1993 quote Bossert as saying: "Hoffman should have
spoken to me first, he shouldn't have gone to the District
office." (CX 1).
I also note that Bossert admitted that he made this
statement to Mucha; however, he explained that he was referring
to the manner in which Claimant handled the situation. (TR 310,
352-353). Claimant should not have approached the school office
in the manner that he did. (TR 310). I further note that
Bossert stated that he had no objection or concern that Claimant
[PAGE 22]
notified the school because that is the standard procedure when
asbestos is found. (TR 309-310, 352-353). Moreover, Bechdel
explained that when Bossert made the statement that he should of
been contacted first, Bossert meant that the workers did the
right thing by shutting down the job, but he would have liked to
have been contacted first. (TR 122-123, 140).
Based on the above and my findings in the prior argument, I
find that Claimant has not raised the inference that the adverse
action resulted from his protected activity. The reasons set
forth above concerning Claimant's non qualifications and his low
seniority, coupled with the overall reduction in work force of
Boss, are much more credible and believable. The simple fact
that Bossert was "upset" does not convince me in this situation
that it was any way connected with his lay off. I find the
testimony of Bossert and Bechdel credible because both their
explanations of Bossert's statement are consistent. Further, I
find that Claimant's communications with the government agencies
did not cause the adverse action. Respondent contacted the DER
and L&I before Claimant. Also, Claimant was already laid off
when Respondent found out about Claimant's contact with these
agencies.
Fourth, Claimant alleges that Bossert's repeated references
to Claimant's contacts with the local newspaper further undermine
Bossert's claim that Claimant was laid off because lack of work,
and corroborate the alternative conclusion that Claimant was not
given work because of his protected communications with the
media. For example, in Bossert's letter of August 25, 1993 to
Gus Mucha of OSHA, Bossert wrote: "I told him if I had another
job for him on Monday he could work on that job. However,
Claimant then called the newspaper, etc., and created quite a lot
of hysteria as a result of asbestos. Mr. Hoffman did not report
for work on Monday the 16th, and has not been back since the
13th." (CX 3). Claimant argues that this letter shows that
Bossert was upset by his communications with the media. Claimant
also argues that it further undermines Bossert's credibility by
falsely claiming that Claimant did not show up for work on
Monday, August 16th.
Further, Claimant argues that at the hearing, Bossert still
appeared to be upset by Claimant's communication with the media.
Bossert admitted saying, several weeks after August 12th: "How
could I have him (referring to Hoffman) back. He destroyed that
job." (TR 325). Bossert explained that he was referring to
Claimant's communications to the newspaper about the asbestos
problem. Also, Bossert testified that had Claimant not gone to
[PAGE 23]
the newspaper, Boss's employees would probably have been back on
the job continuing on because Boss had the capabilities to finish
the job after everyone was trained. (TR 325).
I note that in his letter to Mucha on August 25th, Bossert
went on to say that the "asbestos problem had gotten way out of
hand in the media, etc.. Most of the tests are in at this time
and the appropriate agencies have investigated. The job should
start up again next month." (CX 3). Bossert also testified that
most of the above statements were made after Monday, the 16th.
(TR 316-317). During the week that the newspaper headlines came
out, Bossert testified that he was trying to get the job going
again. (TR 317). Every time Boss would go back on the job
during the week, there would be complaints from inside the
building concerning airborne particles. The complaints and the
hysteria caused the school district to decide to close the job
until the next summer. (TR 325-326).
Bossert testified that as a result of the Danville job
ending, he had to lay off a lot of employees. (TR 326).
Respondent argues that this job involved a large roof which was
being worked on by almost half of the work force of a small
company. Then the job was "closed down" which caused the small
company to reduce the work force by half. Claimant had the least
seniority and experience of any worker in the company which is
the reason he was one of the first to be laid off. The income of
the company dropped considerably as evidenced by the payroll
records. Hence, Respondent argues that it was the business
turndown that caused Claimant to be laid off.
Based on the above, I find that Claimant has not meet his
burden. I find that Bossert's testimony about the nature of his
statements regarding the newspapers is credible. Bossert's
statements concerning the newspapers are based on the complaints
of the students and teachers in the school which arose out of the
hysteria that was created by the media and subsequently caused
the job to close. Bossert's statements deal with the
consequences of the media reaction on the roofing job. Hence, it
was not the reporting of the asbestos prior to his lay off that
caused the job to close, but rather it was the effect of the
reporting to the newspaper after his lay off.
Therefore, I do not find that Claimant's contact with the
media caused the adverse action of Claimant being laid off. The
media contact and frenzy did not occur until after August 16th,
after he was laid off. Even if the Claimant's communications
with the media are protected activities, I find that there is no
[PAGE 24]
casual nexus between the adverse action of Claimant being laid
off and the "possible" protected activity of communicating the
asbestos problem to the media.
Fifth, Claimant alleges that there were jobs available for
him on August 13th and after. Claimant argues that, in addition
to the Danville High School job, another job at Brockway Area
School District was ongoing around August 12. (TR 266). In his
deposition, Bossert admitted that he had another crew working on
a job at the Brockway School District on August 16, 1993, and
that Claimant was capable of working on the Brockway job on that
date. (CX 19 p. 58). However, I note that when Bossert was
asked whether Claimant could have worked on that job, he stated
yes. But, he explained that the job was about to close, and he
had other full crews working on that job. (CX 19 p. 58).
Further, Claimant argues that Bossert's testimony at the
hearing and the time records for the week of August 15-21 show
that at least three employees were assigned to the Brockway
School District job during that week. (TR 281, 345-346) (EX 3).
I do not find this statement persuasive because as stated above,
Bossert testified that he did not send Claimant on that job
because there was already enough people in the crew working on
the Brockway school job, and the job was almost complete. (CX
19) (TR 345-346).
Therefore, I find that Claimant has not meet his burden of
proof with this evidence. Bossert testified that Claimant was
laid off due to lack of work. Although Boss had a job after
August 16th at the Brockway school, the job was ending and there
were already enough people on that job. Also, because Claimant
had the lowest seniority, it is logical that Boss did not remove
people already on that job and replace them with Claimant.
In addition, Claimant argues that during the week of August
15th - 19th, all of the seven employees present at the Danville
job on August 12th, with the exception of Dave Lenig who quit and
Claimant, worked for Boss at least a partial week. (TR 151) (CX
20). Additional testimony established that work was also
available in September, October, and November. Bechdel testified
at the hearing that he worked all through September, October, and
most of November. (TR 127). He further testified that Chad
Smith, Hufnagle, Osman, and Mehallow all worked regularly for
Boss through the months of September and October. (TR 132).
Respondent argues that Beaver testified that none of the
employees on the Danville job worked more than a hour on Monday.
[PAGE 25]
Bossert reasoned that because the results from the tests
performed on the Danville roof were not received until after
11:00 am, the workers did not work at the school that day.
Bossert indicated that the work on the Danville was going to
resume on Tuesday with the appropriate people. (TR 341). The
government agencies wanted all of the workers to be certified.
(TR 341-342, 344-345) (CX 50). Claimant was not certified. At
that time, Boss did not have enough workers who were asbestos
certified to make a crew to be able to continue on with the job
on Tuesday. (TR 317). As a result, a few of the employees
worked only three hours on Tuesday on the Danville job. (RX 3).
The employees on the Danville job, with the exception of
Claimant, Lenig, and Ken Smith, went for asbestos training.
Claimant was not sent to the school because he did not contact
the office after August 16th. Also, Claimant had the lowest
seniority and not all of Boss's employees were sent for asbestos
certification. (TR 124-125, 128, 136).
Also, as a result of the Danville job closing, some of the
employees were laid off, and some of the employees went on to
other jobs that were not wage jobs or were private jobs that did
not pay as much. (TR 326) (RX 3). Bossert and Beaver both
testified that business decreased after the Danville job. The
gross wage report shows a decrease in the amount of the payroll
which supports their testimony. (RX 5).
Further, Respondent argues that Claimant lists the employees
who continued to work in September, October, and November, but he
fails to mention the names of the employees who were laid off and
did not work at all during this time. There were several other
employees besides Claimant who did not work after the Danville
and Brockway jobs. Some of the employees who were laid off or
who did not work were Dave Lenig, Ken Smith, Tom Alexander, Steve
Venios, and Chad Bossert. (TR 328). Specifically, Ken Smith was
laid off a couple of weeks after the 12th, and Tom Alexander was
laid off shortly after the 12th. (TR 134). Also, Chad Smith was
gone for 6 weeks so he was not working during this time. (TR
134). None of these employees were replaced by new employees.
(TR 134). The employees listed above, who continued to work, had
more seniority, more expertise or were certified in other areas.
I further note that Claimant fails to mention that he had
surgery on September 15, and was unable to work for a period of
time. While Claimant was recuperating, he was paid worker's
compensation. Boss still considered him to be an employee. (TR
315, 329). In fact, Boss, through Kristine Beaver, contacted
Claimant's doctor on October 8, to inquire whether Claimant could
[PAGE 26]
return to work doing light duty tasks. (RX 9). After obtaining
the doctor's approval for Claimant to return to work, Beaver sent
Claimant a letter instructing him to report to work on October
21, 1993. (CX 12).
Based on the above, I find that Claimant has failed to raise
an inference that his lay off from Boss had anything to do with
his engaging in protected activities. Claimant was laid off
along with several other employees because there was not enough
work. Claimant had the lowest seniority and experience. Boss's
business dropped, and as a result, only a few employees were
still employed. Further, Claimant had surgery and was unable to
work for a period of time, but he returned to work after he had
recuperated.
As stated above, I find that Claimant was not offered work
on August 13th and 16th because he was not qualified to perform
the tear off or the detailing of the roof. Also, the other
ongoing job at the Brockway School was almost finished, and there
were already enough people on the job. There were no other jobs
available on August 13th and 16th besides the Danville and
Brockway school jobs.
V. Conclusion
Based on all of the above evidence, I find that Claimant has
failed to raise an inference that the adverse action of Claimant
being laid off was a result of his engaging in protected
activities such as contacting the school officials, government
agencies, or the newspapers. Therefore, I find that Claimant has
failed to establish a prima facie case because he has
failed to prove a casual nexus between the adverse action and the
protected activities. Hence, having found that Claimant has not
met his threshold burden of establishing a prima facie
case, his complaint must be dismissed.
RECOMMENDED ORDER
For the reasons stated above, I recommend that the complaint
of Richard Hoffman v. W. Max Bossert (94-CAA-0004) be dismissed
in its entirety.
FRANK D. MARDEN
[PAGE 27]
Administrative Law Judge
Camden, NJ
FDM/hb
NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Office of Administrative
Appeals, U.S. Department of Labor, Room S-4309, Frances Perkins
Building, 200 Constitution Ave., NW, Washington, DC 20210. The
Office of Administrative Appeals has the responsibility to advise
and assist the Secretary in the preparation and issuance of final
decisions in employee protection cases adjudicated under the
regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed.
Reg. 13250 (1990).
[ENDNOTES]
[1] Section 7622(a) of the Clean Air Act provides:
(a) Discharge or discrimination prohibited. No employer may
discharge any employee or otherwise discriminate against any
employee with respect to his compensation, terms, conditions, or
privileges of employment because the employee (or any person
acting pursuant to a request of the employee) -
(1) commenced, caused to be commenced, or is about to
commence or cause to be commenced a proceeding under this Act or
a proceeding for the administration and enforcement of any
requirement imposed under this Act or under any applicable
implementation plan,
(2) testified or is about to testify in any such
proceeding, or,
(3) assisted or participated or is about to assist or
participate in any manner in such a proceeding or in any other
action to carry out the purposes of this Act.
42 U.S.C. §7622(a) (1977).
[2] Section 9610 of CERCLA provides:
(a) Activities subject to protection. No person shall fire
or in any other ways discriminate against, or cause to be fired
or discriminated against, any employee or any authorized
representative of employees by reason of the fact that such
employee or representative has provided information to a State or
to the Federal Government, filed, instituted, or caused to be
filed or instituted any proceeding under this Act, or has
testified or is about to testify in any proceeding resulting from
the administration or enforcement of the provisions of this Act.
42 U.S.C. §9610(a) (1980).
[3] Although Claimant, in his closing argument, referred to an
oral complaint with OSHA, that complaint does not appear to be
part of these proceedings, in the Complaint filed with the
Department of Labor, or in the Dept. of Labor's findings of
October 13, 1993. Thus, I will not address the OSHA complaint.
[4] The following references will be used herein: TR for
transcripts of the hearings held before me in Lewisburg,
Pennsylvania, RX for Respondent's exhibit, CX for Claimant's
exhibit, and ALJX for Administrative Law Judge's exhibit.
[5] The following exhibits were admitted into the record
subsequent to the hearing: ALJX 20 - Claimant's closing
argument; ALJX 21 - Respondent's closing argument; ALJX 22 -
Claimant's rebuttal to Respondent's brief; ALJX 23 - the hearing
transcript; CX 52 - deposition of Ronald Schwebel; CX 53 -
deposition of Michael Hughes.
[6] Respondent's attorney stated that Claimant, an employee of
Boss, engaged in light duty work because of worker's compensation
restrictions in October and November. (TR 38). He was
subsequently laid off. (TR 41).
[7] Respondent's attorney also stated that if Claimant was
physically qualified, then Boss would send him to get trained in
asbestos. (TR 38). However, if Claimant is not qualified at the
moment, then Boss would send him to asbestos training once he was
qualified. (TR 315).
[8] Hoffman's back pay of $2097 was calculated by adding the
following amounts:
(1) back pay of $175 for August 13, calculated by
multiplying the 8 work hours reported on the time sheets for
other employees working on the Danville High School on August 13
by the stipulated prevailing wage rate of $21.90 per hour for the
Danville High School job; (TR 174) (RX 4)
(2) back pay of $734 for August 15-19, calculated by
multiplying the 33.5 work hours reported on the time sheets for
other employees working at the Brockway School that week by the
prevailing wage rate of $21.90; and
(3) back pay of ,188 for the weeks of August 23rd and 30th
and September 6th and 13th, calculated by multiplying the average
weekly wage of $296.90 reported on Hoffman's workers compensation
form by the four weeks that Hoffman was without work before
becoming eligible for workers' compensation. (RX 6) (TR 272).
The average wage on the workers compensation form was used
for computing compensation during this last period because it
provided the most reliable minimum figure available, even though
Hoffman's actual compensation would have been higher due to some
prevailing wage work at $19 to $22 per hour. (TR 169, 331).
According to Beaver, approximately 75 percent of the work
performed by Boss was prevailing wage work, and Hoffman worked on
the prevailing wage jobs 40 to 50 percent of the time. (CX 19,
20).
[9] I note that the attorney fees in this case are unnecessarily
high. I do not understand how an attorney can justify spending
$31,000 in a $2,000 case. Most of the attorney's fees appear to
be investigating, discussing, or copying the rules concerning
asbestos. The presence of asbestos on the roof was never an
issue in this case. Further, I note that one of the attorneys
donated his services which would apparently reduce the total
legal cost. Attorneys should keep their fees within a reasonable
range and not run up bills unnecessarily. The whistleblower
provisions only allows Claimant to recover expenses that are
reasonably incurred in connection with the proceeding. The
$31,000 of expenses in this case does not appear reasonable.
